302 F. Supp. 3d 12
D.C. Cir.2018Background
- Plaintiffs (James Madison Project and reporter Josh Gerstein) submitted FOIA requests to ODNI, CIA, NSA, and FBI seeking: (1) a two‑page government synopsis of the Steele “dossier,” (2) any final determinations about the synopsis’ factual claims, and (3) investigative files used for those determinations.
- ODNI/CIA/NSA acknowledged possession of the two‑page synopsis but issued Glomar responses (refuse to confirm/deny) as to final determinations and related files; FBI issued a blanket Glomar to the entire request.
- Plaintiffs argued Glomar responses were waived because public statements (including President Trump’s tweets/interviews and some statements by Clapper and Comey) officially acknowledged the documents or their contents.
- Agencies invoked FOIA Exemptions 1, 3, and 7(A) and submitted declarations (including classified in‑camera material) supporting non‑disclosure.
- District court evaluated whether public statements constituted an "official acknowledgement" sufficient to defeat Glomar and whether withholding the synopsis itself was permissible under Exemptions 1 and 3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether President Trump’s tweets/statements (and some public remarks by Clapper/Comey) officially acknowledge existence of the two‑page synopsis (Item One), defeating FBI’s Glomar | Tweets/interviews show the President publicly acknowledged receipt/knowledge of dossier material; thus existence is official and Glomar waived | Statements do not specifically reference the two‑page synopsis; confirming/denying would reveal investigative activity and harm law enforcement interests (Exemption 7(A)) | Court held statements did not officially acknowledge the synopsis; FBI’s Glomar as to Item One was proper |
| Whether public statements officially acknowledge existence of "final determinations" or investigative files (Items Two & Three), defeating Glomar | President’s repeated public characterization of dossier as "fake/discredited" and related remarks imply agencies made determinations and possess supporting files | No official statement matches the specific records sought; tweets/interviews plausibly rest on media or personal knowledge rather than agency records; Glomar justified to protect law‑enforcement and classified interests | Court held no official acknowledgement for Items Two & Three; Glomar responses proper |
| Whether statements by former officials (Comey, Clapper) after leaving office can be treated as official acknowledgements | Plaintiffs urged court to treat post‑service statements as corroborative or supplemental evidence supporting waiver | Post‑service statements are unofficial and not imputable to agencies; cannot convert into official acknowledgements | Court refused to treat post‑service statements as official or as corroboration; they do not defeat Glomar |
| Whether ODNI/CIA/NSA properly withheld the two‑page synopsis under Exemptions 1 and 3 | Plaintiffs argued some synopsis content was publicly disclosed (citing Comey’s post‑service testimony) creating factual dispute precluding summary judgment | Agencies submitted (including classified) declarations showing synopsis is protected and disclosure would reveal classified analytic matters; post‑service disclosures are not official and do not waive exemptions | Court granted summary judgment to agencies; withholding of the synopsis under Exemption 1/3 upheld |
Key Cases Cited
- Roth v. U.S. Dep't of Justice, 642 F.3d 1161 (D.C. Cir.) (discusses Glomar responses and context for FOIA exemptions)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir.) (official‑acknowledgement doctrine applied in Glomar context; narrow waiver where official read from specific agency records)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir.) (three‑part test for official acknowledgment of withheld record contents)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir.) (public statements can render it "neither logical nor plausible" for agency to deny existence of records)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir.) (agency bears ultimate burden; official‑acknowledgment waiver must match the requested records)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir.) (limits on imputing disclosures between agencies; post‑service statements not official)
- Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521 (D.C. Cir.) (summary judgment is appropriate procedural vehicle in FOIA cases)